Adapted from Flag
Protection: A Brief History and Summary of Recent Supreme Court Decisions and
Proposed Constitutional Amendment
John Luckey, US Congressional Research Service
Updated June 4, 2003

Flag Burning

Summary

Many
Members of Congress see continued tension between "free speech"
decisions of the Supreme Court, which protect flag desecration as
expressive conduct under the First Amendment, and the symbolic importance
of the United States flag. Consequently, every Congress that has convened
since those decisions were issued has considered proposals that would
permit punishment of those who engage in flag desecration. The 106th
Congress narrowly failed to send a constitutional amendment to allow
punishment of flag desecration to the States. In the 107th Congress, one
such proposal was passed by the House. In the 108th Congress, the House
Judiciary Committee has favorably reported a proposed constitutional
amendment to allow punishment of flag desecration on a vote of 18-13.

This
report is divided into two parts. The first gives a brief history of the
flag protection issue, from the enactment of the Flag Protection Act in
1968 through current consideration of a constitutional amendment. The
second part briefly summarizes the two decisions of the United States
Supreme Court, Texas v. Johnson and United States v. Eichman, that struck
down the state and federal flag protection statutes as applied in the
context punishing expressive conduct.

In
1968, Congress reacted to the numerous public flag burnings in protest of
the Vietnam conflict by passing the first federal flag protection act of
general applicability. For the next 20 years, the lower courts upheld the
constitutionality of this statute and the Supreme Court declined to review
these decisions. However, in Texas v. Johnson, the majority of the Court
held that a conviction for flag desecration under a Texas statute was
inconsistent with the First Amendment and affirmed a decision of the Texas
Court of Criminal Appeals that barred punishment for burning the flag as
part of a public demonstration.

In
response to Johnson, Congress passed a federal Flag Protection Act. But,
in reviewing this Act in United States v. Eichman, the Supreme Court
expressly declined the invitation to reconsider Johnson and its rejection
of the contention that flag-burning, like obscenity or "fighting
words," does not enjoy the full protection of the First Amendment as
a mode of expression. The only question not addressed in Johnson, and
therefore the only question the majority felt necessary to address, was
"whether the Flag Protection Act is sufficiently distinct from the
Texas statute that it may constitutionally be applied to proscribe
appellees' expressive conduct." The majority of the Court held that
it was not.

Congress,
recognizing that Johnson and Eichman had left little hope of an anti-
desecration statute being upheld, has considered in each Congress
subsequent to these decisions a constitutional amendment to empower
Congress to protect the physical integrity of the flag. H.J.Res. 4 to this
purpose has been favorably reported in the 108th Congress by the House
Judiciary Committee and passed by the House on June 3, 2003; no action has
been taken in the Senate on a companion proposal, S.J.Res. 4.

Summary

Many
Members of Congress see continued tension between "free speech"
decisions of the Supreme Court, which protect flag desecration as
expressive conduct under the First Amendment, and the symbolic
significance of the United States flag. Consequently, every Congress that
has convened since those decisions were issued has considered possible
measures to permit the punishment of those who engage in flag desecration.
In the 108th Congress, the House Judiciary Committee has favorably
reported H.J.Res. 4, a proposal for a constitutional amendment to allow
Congress to prohibit the physical desecration of the flag. The Senate has
not taken action on a similar measure, S.J.Res. 4.

This
report is divided into two parts. The first gives a brief history of the
flag protection issue, from the enactment of the Flag Protection Act in
1968 through current consideration of a constitutional amendment. The
second part briefly summarizes the two decisions of the United States
Supreme Court, Texas v. Johnson and United States v. Eichman, that struck
down the state and federal flag protection statutes as applied in the
context punishing expressive conduct.1

History

In
1968, in the midst of the Vietnam conflict, Congress enacted the first
Federal Flag Protection Act of general applicability.2 The law was
occasioned by the numerous public flag burnings in protest of the war.3
For the next 20 years, the lower courts upheld the constitutionality of
the federal statute and the Supreme Court declined to review these
decisions.4

However,
during the 20-year period between enactment of the Flag Protection Act and
its Johnson decision, the Supreme Court did visit the flag issue three
times. Each time the Court found a way to rule in favor of the protest or
and overturn a state conviction on very narrow grounds, avoiding a
definitive ruling on the constitutionality of convictions for politically
inspired destruction or alteration of the American flag.5 In Street v. New
York,6 the Court overturned a state conviction for flag-burning, holding
that the flag-burner was prosecuted for his words rather than his acts. In
1974, the Court overturned a prosecution by finding that the state statute
was vague.7 In Spence v. Washington,8 the Court held that the taping of a
peace symbol to a flag was expressive conduct and thus protected by the
First Amendment. In both of these later cases the Court expressly referred
to the federal statute in a positive manner.9

It
was against this background, that the Supreme Court took the Johnson case.
In 1984, during the Republican National Convention in Dallas, Texas,
Johnson had participated in a demonstration protesting the policies of the
Reagan administration. In front of the city hall, Johnson unfurled an
American flag, which another member of the demonstration had taken from a
flag pole and had given to him, doused it with kerosene, and set it on
fire. He was charged with the desecration of a venerated object in
violation of a Texas statute.10 Johnson was tried, convicted, and
sentenced to one year in prison and fined $2,000. The conviction was
upheld by the Court of Appeals of the Fifth District of Texas at Dallas.11
The Texas Court of Criminal Appeals reversed.12 In a 5 to 4 decision, the
U.S. Supreme Court affirmed this reversal on June 21, 1989,13 thus, in
effect, holding that the flag protection statutes of 47 states and the
federal statute could not be applied to a flag burning that was part of a
public demonstration.14

In
response to this decision, Congress enacted the Flag Protection Act of
1989.15 The Act changed the focus of the protection granted the flag from
protecting it against desecration, which the Court had ruled
unconstitutional, to protecting its physical integrity. The primary
purpose of amending the federal desecration statute was to remove any
language which the courts might find made the statute one that was aimed
at suppressing a certain type of expression. If the statute was neutral as
to expression for instance, if it proscribed all burning of flags then,
its proponents argued, the statute's prohibitions might be judged under
the constitutional test enunciated by the Court in United States v.
O'Brien. Under the O'Brien test, which is less strict than First Amendment
standards applied in expression cases, the government need only show that
the statute furthers an important or substantial governmental interest,
and that the restriction on First Amendment freedoms is no greater than is
essential to the furtherance of that interest.16 All of the opinions in
Johnson had recognized a governmental interest in protecting the physical
integrity of the flag to some degree. Therefore, it was at least arguable
that such a neutral statute would meet the second part of the test.

The
new statute made criminal intentionally mutilating, defacing, physically
defiling, burning, maintaining on the floor or ground, or trampling upon
the flag of the United States. Exemption was given for conduct consisting
of disposal of a worn or soiled flag. The term "flag of the United
States" was defined to mean any flag of the United States, or any
part thereof, made of any substance, of any size, in a form that is
commonly displayed. Provision was made for expedited Supreme Court review
of the constitutionality of the Act.

The
Flag Protection Act of 1989 became effective on October 28, 1989. On that
date protesters in Seattle Washington and Washington D.C. were arrested
for violation of the new Act. These cases were dismissed upon findings
that the Act was unconstitutional as applied to their burning a United
States flag in a protest context.17 The D.C. and Seattle cases were
appealed to the Supreme Court under the Act's expedited review
provision.18 On June 11, 1990, the Court announced its ruling.19 In
another 5 to 4 decision,20 the Court held that the Flag Protection Act of
1989 could not be constitutionally applied to a burning of the flag in the
context of a public protest.

In
the summer of 1990, both Houses of Congress considered and failed to pass
by the required two-thirds vote21 an amendment to the Constitution which
would have empowered Congress to enact legislation to protect the physical
integrityof the flag.

In
each of the last four Congresses, the House passed proposed Constitutional
Amendments which would have authorized Congress to enact legislation to
protect the flag from physical desecration.22 In the 104th Congress, the
Senate considered a "flag" Amendment, but came three votes short
of passing it.23 In the 105th Congress, the Senate Judiciary Committee
reported (without written report) an Amendment to authorize protection of
the flag, S.J.Res. 40. The Senate did not bring this resolution to the
floor for consideration. In the 106th Congress, S.J.Res. 14 failed, by a
vote of 63-37, to receive the necessary two-thirds vote in the Senate.24

In
the 108th Congress, the House, on June 3, 2003, passed H.J.Res. 4 by a
vote of 300 to 125.25 The Senate has yet to consider S.J.Res. 4, a
proposal by Sen. Hatch that is similar to H.J.Res. 4. Like most earlier
proposals, H.J.Res. 4 and S.J.Res.4 would add the following to the
Constitution:

The
Congress shall have power to prohibit the physical desecration of the flag
of the United States.

Should
Congress approve a proposed flag protection amendment by the required
two-thirds majority of each House, the amendment would only become
effective upon ratification by the legislatures of three-fourths of the
states within seven years after submittal for ratification.

Texas
v. Johnson

In
Texas v. Johnson, the majority of the Court held that Johnson's conviction
for flag desecration, under a Texas statute, was inconsistent with the
First Amendment and affirmed the decision of the Texas Court of Criminal
Appeals that held that Johnson could not be punished for burning the flag
as part of a public demonstration.

The
opinion outlined the questions to be addressed in a case where First
Amendment protection is sought for conduct rather than pure speech. First,
the Court must determine if the conduct in question is expressive conduct.
If the answer is yes, then the First Amendment may be invoked, and the
second question must be answered. The second question is whether the state
regulation of the conduct is related to the suppression of expression. The
answer to this question determines the standard which will be utilized in
judging the appropriateness of the state regulation.

The
test of whether conduct is deemed expressive conduct sufficient to bring
the First Amendment into play is whether an intent to convey a
particularized message was present, and whether the likelihood was great
that the message would be understood by those who viewed it.26 The opinion
emphasizes the communicative nature of flags as previously recognized by
the Court,27 but states that not all action taken with respect to the flag
is automatically expressive. The context in which the conduct occurred
must be examined.28 The majority found that Johnson's conduct met this
test. The burning of the flag was the culmination of a political
demonstration. It was intentionally expressive, and its meaning was
overwhelmingly apparent. In these circumstances the burning of the flag
was conduct "sufficiently imbued with elements of communication"
to implicate the First Amendment.29

The
finding that burning the flag in this circumstance was expressive conduct
required the Court next to look at the statute involved to see if it was
directly aimed at suppressing expression or if the governmental interest
to be protected by the statute was unrelated to the suppression of free
expression. If the statute were of the latter type, the government would
need only show that it furthers an important or substantial governmental
interest, and that the restriction on First Amendment freedoms is no
greater than is essential to the furtherance of that interest.30 If the
statute was aimed at suppression of expression, then it could be upheld
only if it passed the most exacting scrutiny.31

Texas
offered two state interests which it sought to protect with this statute:
prevention of breaches of the peace; and preservation of the flag as a
symbol of nationhood and national unity. The majority rejected the first
of these interests as not being implicated in the facts of this case. No
disturbance of the peace actually occurred or was threatened. The opinion
also points out that Texas has a statute specifically prohibiting breaches
of the peace,32 which tends to confirm that flag desecration need not be
punished to keep the peace.33

The
second governmental interest, that of preserving the flag as a symbol of
national unity, was found by the majority to be directly related to
expression in the context of activity.34 The Texas law did not cover all
burning of flags. Rather it was designed to protect it only against abuse
that would be offensive to others. Whether Johnson's treatment of the flag
was proscribed by the statute could only be determined by the content of
his expression. Therefore, exacting scrutiny must be applied to the
statute.35

The
majority held that the Texas statute could not withstand this level of
scrutiny. There is no separate constitutional category for the American
flag. The government may not prohibit expression of an idea merely because
society finds the idea offensive, even when the flag is involved. Nor may
a state limit the use of designated symbols to communicate only certain
messages.36

United
States v. Eichman

The
Court in reviewing the Flag Protection Act of 1989 in United States v.
Eichman expressly declined the invitation to reconsider Johnson and its
rejection of the contention that flag-burning as a mode of expression,
like obscenity or "fighting words," does not enjoy the full
protection of the First Amendment.37 The only question not addressed in
Johnson, and therefore the only question the majority felt necessary to
address, was "whether the Flag Protection Act is sufficiently
distinct from the Texas statute that it may constitutionally be applied to
proscribe appellees' expressive conduct."38

The
government argued that the governmental interest served by the Act was
protection of the physical integrity of the flag. This interest, it was
asserted, was not related to the suppression of expression and the Act
contained no explicit content- based limitations on the scope of the
prohibited conduct. Therefore the government should only need to show that
the statute furthers an important or substantial governmental interest,
and that the restriction on First Amendment freedoms is no greater than is
essential to the furtherance of that interest.39

The
majority, while accepting that the Act contained no explicit content-based
limitations, rejected the claim that the governmental interest40 was
unrelated to the suppression of expression. The Court stated:

The
Government's interest in protecting the "physical integrity" of
a privately owned flag rests upon a perceived need to preserve the flag's
status as a symbol of our Nation and certain national ideals. But the mere
destruction or disfigurement of a particular physical manifestation of the
symbol, without more, does not diminish or otherwise affect the symbol
itself in any way. For example, the secret destruction of a flag in one's
own basement would not threaten the flag's recognized meaning. Rather, the
Government's desire to preserve the flag as a symbol for certain national
ideals is implicated "only when a person's treatment of the flag
communicates [a] message" to others that is inconsistent with those
ideals.41

In
essence the Court said that the interest protected by the Act was the same
interest which had been put forth to support the Texas statute and
rejected in Johnson.

The
opinion went on to analyze the language of the Act itself. Again, while
there was no explicit limitation found in this language, the majority
found that each of the specified terms, with the possible exception of
"burns," unmistakably connoted disrespectful treatment of the
flag and thus argues against the expression neutrality of the Act.42
Therefore, although the Act was "somewhat broader" than the
Texas statute, it still suffered from the same fundamental flaw, namely it
suppressed expression out of concern for its likely communicative
impact.43 This being the case, the Majority found that the O'Brien test
was inapplicable and the Act must be subject to "the most exacting
scrutiny." As in Johnson, the statute in question could not withstand
this level of scrutiny.

Notes

1
- For a more detailed discussion of these cases, see, John Luckey, Texas
v. Johnson: Flag Desecration and the First Amendment, CRS Report 89-394
(June 29, 1989) and John Luckey, United States v. Eichman: the Flag
Protection Act of 1989 Held Unconstitutional, CRS Report 90-301 (June 19,
1990).

2
- P.L. 90-381, 82 Stat. 291 (1968), codified at 18 U.S.C. 700. Prior to
this Act there was an act which prohibited desecration of the flag in the
District of Columbia.

14
- Alaska and Wyoming do not have this type of statute. For a list of the
citations to the state flag desecration statutes in effect at the time,
see, Texas v. Johnson, at 428, n.1 (Rehnquist, C.J., dissenting) (1989).
See, also, Vastine Davis Platte, Flag Desecration and Flag Misuse Laws in
the United States, CRS Report 95-182 (March 29, 1995).

18
- United States v. Eichman, 89-1433, and United States v. Haggerty,
89-1434.

19
- United States v. Eichman, 496 U.S. 310 (1990).

20
- It should be noted that both Johnson and Eichman were 5 to 4 decisions
with the division of the Court identical. Justice Brennan delivered the
opinion of the Court, in which Justices Marshall, Blackmun, Scalia, and
Kennedy, joined. The dissenting justices were Chief Justice Rehnquist,
Justices Stevens, White, and O'Connor. Three of the majority justices are
no longer on the Court, Justice Brennan being replaced by Justice Souter,
Justice Marshall beingreplaced byJustice Thomas, and Justice Blackmun
beingreplaced byJustice Ginsburg. One of the minority justices has been
replaced, Justice White being replaced by Justice Breyer. With this large
a changeover in the Court, one cannot predict the outcome of a similar
case with any great certainty.

21
- The vote in the House was 254 to 177 (34 votes short of two thirds). The
vote in the Senate was 58 to 42 (9 votes short of two thirds).

25
- 149 CONG. REC. H4842 (daily ed. June 3, 2003)(record vote no.234). The
Judiciary Committee had favorably reported the resolution on May 21, 2003,
on a vote of 18-13. H.Rept. 108-131. Prior to approving H.J.Res. 4, the
committee voted down two proposed alternatives. One, offered by Rep.
Scott, would have limited the proposal's coverage to flag burning. The
second, offered by Rep. Watt, would have required that congressional
regulation of flag desecration be consistent with First Amendment rights.

37
- United States v. Eichman, 496 U.S. 310, at 315 (1990). The majority also
declined to reassess Johnson in light of Congress' recognition of a
"national consensus" favoring a prohibition on flag-burning,
stating:

Even
assuming such a consensus exists, any suggestion that the Government's
interest in suppressing speech becomes more weighty as popular opposition
to that speech grows is foreign to the First Amendment. Id. at 318.

38
- Id.

39
- See, United States v. O'Brien, 391 U.S. 367, 377 (1968).

40
- The opinion notes that there are at least two other interests the
government has in protecting the flag, but these interests are not
involved in the context of flag-burning of a privately owned flag. The
decision does not affect the extent the government's interest in
protecting publicly owned flags might justify special measures on their
behalf. Eichman, at 316, nt. 5. The government, also, has a legitimate
interest in preserving the flag's function as an "incident of
sovereignty," but the facts of this case did not interfere or
threaten that interest. Id. at 316, nt. 6.

41
- Eichman, at 315-316.

42
- Id. at 317.

43
- Id. at 318.

This document is not necessarily endorsed by the
Almanac of Policy Issues. It is being preserved in the Policy
Archive for historic reasons.